Film

April 09, 2015

The shocking shooting of Walter Scott by South Carolina police officer Michael Slager has, as the New York Timesput it, “reignited the debate” over video cameras and policing. They write,

Nothing has done more to fuel the national debate over police tactics than the dramatic, sometimes grisly videos: A man gasping “I can’t breathe” through a police chokehold on Staten Island, a 12-year-old boy shot dead in a park in Cleveland. And now, perhaps the starkest video yet, showing a South Carolina police officer shooting a fleeing man in the back.

People lie. Corporations lie. Videos don’t lie. And Michael Slager isn’t the only one who found this out recently. We're talking to you, Chevron.

First some background. Chevron has been engaged in some despicable acts in northern Ecuador:

Chevron (formerly Texaco) deliberately dumped billions of gallons of toxic wastewater and spilled roughly 17 million gallons of oil ("cost-cutting measures") in the rivers and streams of the once-pristine forest. The consequence: a severe public health crisis amongst the indigenous people and farmers of the region. Cancer, birth defects, disease, and poverty for those unlucky enough to live above an American oil company's underground rivers of liquid gold.

A human rights attorney who sued them, Steven Donziger, was then sued by Chevron for "racketeering". Wrote longtime rainforest activist Trudie Styler, who had the “the unfortunate opportunity” of watching (along with husband Sting) this RICO case proceed against her friend, Mr. Donziger:

Filed under the RICO statute -- designed originally to prosecute organized crime syndicates -- Chevron's racketeering lawsuit is the oil giant's alarming and cynical attempt to destroy a two decades-long effort to hold the company accountable. And tragically, they have succeeded.

Instead of owning up to its grave responsibility in Ecuador, Chevron instead has spent millions of dollars creating what appeared to me a modern Kafkaesque drama in the courtroom, where suddenly the victims of Chevron's contamination in Ecuador have become the accused, and the polluter has become the victim; an absurd theatre where justice has been turned on its head.

Incredibly, a New York judge “ruled in Chevron's favor, finding Donziger and his team guilty of attempting to extort money from the company and obstructing justice by ghostwriting the Ecuadoran court's judgment.” Perhaps justice is about to be turned right-side up again.

A whistleblower mailed to the environmental group, Amazon Watch, 47 DVDs of internal Chevron videos in April 2011, along with the note, “I hope this is useful for you in the trial against Texaco/Chevron! Signed, a friend from Chevron.” Amazon Watch showed a few of these DVD’s to VICE News and they are now up on YouTube. Writes VICE,

Amazon Watch and Donziger say the video shows footage from sites that were classified in an agreement between Chevron and the Ecuadoran government as completely remediated — that is, already cleaned up.

"The Chevron secret videos speak for themselves," Donziger said in an email to VICE News. "They clearly show Chevron technicians finding massive amounts of contamination at sites the company had previously claimed had been remediated…. Chevron should be ashamed of its behavior, which our team considers to be not only unethical, but criminal."…

"These videos are Chevron's property, and are confidential documents and/or protected litigation work product," one of Chevron's lawyers wrote in a February 15, 2013 letter to Donziger's attorneys. "Chevron demands that you promptly return the improperly obtained videos and all copies of them by sending them to my attention at the above address."

Larry Veselka, an attorney for Donziger in the suit, replied that Chevron had long been aware that the defendants were in possession of the videos and had never asked for copies to be handed over.

"Nevertheless, because of your objection, however untimely… we will not post the videos to any publically accessible site tonight," he wrote.

December 18, 2014

Earlier this year, Oliver Stone, one of Hollywood’s more courageous film directors, railed against President Obama for being spineless. The same has been said of other Democrats, of course. Now it’s Hollywood - Sony Pictures, more specifically - who's being disparaged for this trait, while President Obama and his party seemed to have suddenly found some backbone.

First Hollywood. It’s been said that Hollywood caters to 16-year-olds. All I know is that Hollywood makes a lot of dumb comedies. The film The Interview was probably one of them, although we’ll never know now that Sony “caved” and won’t release it. Interesting that it took this act for the words “Hollywood” and “spineless” to be suddenly linked in headlines, like this from the The Huffington Post: SPINELESS: Sony, Theaters Cave To Terror Threat.

The same day that happened, however, President Obama stood up to the right and restored diplomatic relations with Cuba. Governor Andrew Cuomo stood up to the oil and gas industry and banned fracking in New York. Not only that, two major federal criminal indictments came down charging corporate executives with major corporate crimes.

Law enforcement agents swooped in during predawn raids … and arrested executives and former staffers of a Framingham [MA] compounding pharmacy blamed for producing tainted drugs that killed dozens in one of the deadliest medication contamination cases in US history.…

Some defendants could face life in prison. Prosecutors called the case an “unprecedented” national tragedy, and the indictments ended two years of waiting for patients and families desperate for justice.

“Production and profit were prioritized over safety,” US Attorney Carmen M. Ortiz said during a packed news conference in her offices at the John Joseph Moakley Courthouse in South Boston.

The indictment alleges that New England Compounding and Medical Sales Management Inc. — a company that shared ownership with NECC and provided it with sales and administrative services — constituted a criminal “enterprise” under the federal racketeering law.

“Let me be clear: Actions like the ones alleged in this case display not only a reckless disregard for federal health and safety regulations but also an extreme and appalling indifference for human life,” acting US Associate Attorney General Stuart Delery said.

And another federal indictment was unsealed relating to Freedom Industries’ January chemical spill that contaminated the Elk River in Charleston, West Virginia, leaving “300,000 residents around West Virginia's capital without usable water for drinking and bathing for days.”

The federal indictment charges former Freedom Industries presidents Gary Southern and Dennis P. Farrell and two others with failing to ensure that the company operated in a reasonable and environmentally sound manner the steel tank that leaked the coal-cleaning chemical.

Southern also faces federal fraud charges related to the company's bankruptcy case. Freedom filed for the protection eight days after the Jan. 9 leak into the Elk River in Charleston. …

U.S. Attorney General Eric Holder said in a statement that the tank conditions at Freedom Industries "were not only grievously unacceptable, but unlawful. They put an entire population needlessly at risk. As these actions make clear, such conduct cannot, and will not, be tolerated."

This all follows the earlier indictment of Don Blankenship, the longtime chief executive officer of Massey Energy, who was indicted on charges that he orchestrated the routine violation of key federal mine safety rules at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners. As we noted in our earlier coverage of this case, CEO indictments almost never happen.

October 15, 2014

Today, the Center for Justice & Democracy at New York Law School released a brand new study, “First Class Relief: How Class Actions Benefit Those Who Are Injured, Defrauded and Violated.” The study is a compilation of more than 150 recent class actions that have been litigated and settled since 2005. It's an examination of a wide array of cases, and I mean wide: cases involved predatory and discriminatory lending, like illegal auto finance and mortgage loan mark-ups, payday loans, unlawful practices targeting Servicemembers, and Ponzi schemes. Many race and gender employment discrimination class actions. Nine antitrust class action settlements that distributed over $1 billion to tens of thousands of consumers and small and medium-sized businesses from companies who participated in criminal price-fixing cartels! Wow.

Plus car defects and repossessions, sports tickets, film and television residuals, tainted pet food, contaminated drinking water, home decks and furnace defects, nursing home deficiencies, and health insurer abuses. CJ&D found overwhelming evidence that class actions have not only helped victims of corporate law-breaking but also led to changes in corporate behavior that protect us all from many types of illegal conduct.

The study comes in the midst of a great deal of activity aimed at fighting back against the increasing use of forced arbitration clauses and class action bans in consumer and employment contracts. Alliance for Justice has released a new film about this problem, entitled “Lost in the Fine Print,” narrated by former U.S. Secretary of Labor Robert Reich. And a new petition effort asking five Wall Street banks to stop using forced arbitration clauses has already gathered tens of thousands of signatures in its first week.

We always knew that class action lawsuits were among the most important tools that cheated and violated individuals and small businesses have to recover stolen money, hold large corporations and institutions accountable and deter future misconduct. At last, the evidence – all in one place!

December 11, 2013

One of Nelson Mandela’s enduring legacies was raising awareness about HIV/AIDS and he is one of the prominent figures featured in a new documentary film called Fire in the Blood, which premiered this year at Sundance. The film “tells the story of how Western pharmaceutical companies and governments aggressively blocked access to low-cost AIDS drugs for the countries of Africa and the global south in the years after 1996 - causing ten million or more unnecessary deaths - and the improbable group of people who decided to fight back.” This film follows last year's Oscar-nominated documentary, How to Survive a Plague, which told a similar story about how two coalitions, ACT UP and TAG (Treatment Action Group), fought Big Pharma here in the U.S.

It typically takes 20 years for brand-name drug patents to expire during which time we are all patently price-gouged by drug companies. (Pardon the pun.) The grotesque profit-driven priorities of Big Pharma to keep affordable drugs out of the hands of desperately ill people should make us all grateful for lower-cost generic drugs And usually we are.

As we’ve noted before, right now, the generic drug industry has complete immunity for marketing drugs it knows to be unsafe. This is thanks to two recent U.S. Supreme Court decisions, where the Court ruled that if a consumer is harmed or killed by a generic drug due to the drug’s inadequate labeling or defective design, the manufacturer cannot be held accountable in court; the injured patient has no recourse. The same immunity does not apply to the brand-name drug industry. But today, 80 percent of the time you end up with the generic version of whatever your doctor prescribes.

Here are some other fairly disturbing things that CJ&D found:

Despite what is commonly believed, generic drugs sometimes do not match their brand name counterparts and patients who take them can suffer health consequences due to unsafe design, labeling or manufacturing.

To keep costs down, the FDA approves generic drugs without independent testing if they believe the generic drug is “bioequivalent” to the brand-name drug, but this determination is sometimes flawed.

To keep costs down, generic drugs are more likely than their brand-name counterparts to be manufactured overseas, in countries like India and China, where the FDA rarely inspects factories or the supply chain. History shows that generic drugs or ingredients can be manufactured in dilapidated, dirty factories.

October 21, 2013

Last week, renowned British street artist Banksy, whose Better Out Than In “artist residency on the streets of New York” is the talk of the town, created a piece called “Shoe Shine.” It’s a “performance/sculpture hybrid … featuring an exaggeratedly impoverished-looking young man shining the shoes of a giant Ronald McDonald” which “will visit the sidewalk outside a different McDonalds every lunchtime for the next week.” Ad Weekobserved, “It's going to be a long week for McDonald's store managers.”

We hope that’s true for McDonald’s corporate exes, too. This week, the callous corporate behavior of this company is once again on full display in this New York Times/Retro Report video about the McDonald’s coffee case.

Although the HBO documentary film Hot Coffee did a better job showing how corporate America and their political allies used this case to push a so-called “tort reform” agenda to limit corporate liability for recklessly harming or killing people, it does a good job telling the story of what really happened in the case: From the gruesome photographs of Stella Liebeck's third degree burns and skin grafts, to the court exhibits showing the hundreds of similar burns because McDonald’s chose to sell coffee at superheated temperatures, to the fair and thoughtful reasoning of the jury.

This is information the majority of Americans don’t know. The media has done a terrible job informing the public about this case. It's typical, though, i.e., limiting coverage to headlines and soundbites that never tell the real story of why people go to court or why juries – who are the only ones who hear the evidence in a case – decide how they do. For more examples, check out our earlier post on the Center for Justice & Democracy report, Headline Blues, discussing how “new media” trends, which rely on headlines or brief, sensationalized descriptions, are producing an even more distorted understanding of our civil jury. system.

Retro Report did a good job examining the media’s shoddy coverage of this case. Let’s hope we see more of that.

June 07, 2013

There’s a collective nervousness in the country about hydraulic fracking a.k.a. “fracking” – the highly controversial natural gas drilling method that should
be of concern to anyone who likes their drinking water poison-free and not
flammable.

Some Colorado cities are in open rebellion against
the state’s pro-fracking Governor and have passed their own fracking
moratoriums. In New York, anticipating the same actions by
local communities as we await Governor Cuomo’s decision whether to defy John
Lennon’s widow and son (among millions of others) and lift the state’s fracking moratorium, “a gas drilling company and an upstate
farmer have asked New York’s top court to review a recent decision upholding
the right of towns to ban drilling.” In Illinois, a relatively tough (that’s not saying much) fracking
regulatory bill allowing fracking within 301 feet of lakes, just passed with some
environmental groups caving on their prior moratorium demand, sparking protests
by the rest of the environmental community.

One of the concerns in Illinois is that regulated fracking
does not work. And here’s a related problem. Despite the best efforts of
Hollywood’s Matt Damon and John Krasinski (not to mention Josh Fox), there is still a lot of secrecy surrounding this issue.

For example, in California, “Energy firms are permitted to
keep secret the mix of chemicals they use to extract the oil and gas [and] the
state is not given explicit notice of when and where fracking is taking place.” This is a state where, according to an
newly-released poll,

More than half of voters — 58% — say they favor a moratorium
on the process of injecting chemicals deep into the ground to tap oil and
natural gas deposits embedded in rock until an independent commission has
studied its environmental effects. … Voters' concern about the environmental and
safety implications of fracking, also known as hydraulic fracturing, surfaced
repeatedly.

Secrecy results not only from poor regulation and oversight, as in
California. It is also a deliberate strategy
by companies themselves to keep the public from learning just how badly
they are harming families and the land they frack. WritesBloomberg in a new story
called “Drillers
Silence Fracking Claims With Sealed Settlements,”

In cases from Wyoming to Arkansas, Pennsylvania to Texas,
drillers have agreed to cash settlements or property buyouts with people who
say hydraulic fracturing, also known as fracking, ruined their water, according
to a review by Bloomberg News of
hundreds of regulatory and legal filings. In most cases homeowners must agree
to keep quiet.

The strategy keeps data from regulators, policymakers, the
news media and health researchers, and makes it difficult to challenge the
industry’s claim that fracking has never tainted anyone’s water.

What’s
more, “Because the agreements are almost always shrouded by
non-disclosure pacts … no one can say for sure how many there are. Some stem
from lawsuits, while others result from complaints against the drillers or with
regulators that never end up in court. … Aaron Bernstein, associate director of
the Center for Health and the Global Environment at the Harvard School of Public
Health, said [n]on-disclosure agreements 'have interfered with the ability of
scientists and public health experts to understand what is at stake here.'”

Said
one attorney, “At this point they feel they can get out of this litigation
relatively cheaply … Virtually on all of our settlements where they paid money
they have requested and demanded that there be confidentiality.”

Confidential settlements where the public
health and safety is involved are never a good thing. And for these companies, silence has proven to be golden.

April 23, 2013

In 1997 film “As Good As it
Gets,” there was a great exchange between Carol, the Helen Hunter character, and a doctor sent to properly diagnose
and treat her sickly son following her HMO’s cheap incompetence:

Coincidently, that was the same year that Congress
established Medicare Advantage, which allows Medicare recipients to obtain benefits
directly from HMOs. Why on earth would anyone….?
Anyway, companies that participate in Medicare Advantage
have never been shy about their avarice, that’s for sure. From the beginning,

When Congress created Medicare Advantage, the program that
allows private insurers to offer Medicare to seniors, it agreed to pay
for-profit insurers about 12 percent more per patient than traditional Medicare
would spend if it were covering those patients directly. Add up those
extra payments and they amount to a $16-billion-a-year subsidy for the health
insurance industry.

Why the sweetener? Lobbyists argued that the
government would have to pay more to persuade for-profit insurers to join the
Advantage program. Moreover, they promised that the insurers would use
the $16 billion to offer patients extra benefits like acupuncture and eye exams
that they would not receive under traditional Medicare. And Congress
agreed. Now, think about this for a minute: legislators agreed to use our tax
dollars to help for-profit insurers draw customers away from a government
program that most people liked—and that cost taxpayers less...

As furtherance of their insatiable appetite for dough, these
companies also have not been shy about suing to recapture money they’ve already paid
out. To illustrate, here are two
interesting cases that recently intersected.

First, last week, the U.S. Supreme Court let stand a 3rd.
Circuit ruling that allowed Humana to sue GlaxoSmithKline “for healthcare costs
related to the use of Plaxo’s diabetes drug Avandia,” which caused heart attacks
and strokes, resulting in “$2.3 billion in settlements with 40,000 people who
took Avandia.” GSK had “argued
unsuccessfully that the Medicare Advantage program doesn’t give insurers the
power to file lawsuits.” Silly GSK.
Human’s an insurance company. Of
course they can sue! Indeed, this decision “gave private insurers
providing Medicare benefits the same right as the government” when it comes to
suing for reimbursement “from a third party that commits a tort and causes an
injury.” And that means double damages!

Ah, but turns out there may be actual limits to this power. Medicare Advantage company PacifiCare of
Arizona Inc, now UnitedHealthcare West, tried – in fact, relying on the Humana
case – but failed “under the federal Medicare Act to sue a deceased man's
survivors for auto insurance proceeds to recover what PacifiCare had paid for
the man's medical expenses.” The man was
struck while walking in a parking lot, suffered terrible injuries and then died.
WritesReuters, “The Medicare
Advantage plan that Parra was enrolled in paid $137,000 for his medical
expenses. After Parra later died from his injuries, his relatives obtained
$500,000 in wrongful death damages in a settlement with the driver's auto
insurer, Geico. PacifiCare claimed a right to $137,000 it had paid for Parra's
medical care from the auto insurance proceeds.”
The lower court found “that PacifiCare had no private right to sue them
under the federal law, and the 9th Circuit agreed.” Explained the Court,

The private right to sue under the Medicare Secondary Payer
Act applies if a primary plan, such as Geico, fails to provide primary payment,
the court noted.

“But here, PacifiCare makes no claim against Geico, the
primary plan, nor has that plan failed to provide for payment,” Judge Andrew
Hurwitz wrote for the three-judge panel. Rather, the company's claim was
against Parra's survivors and therefore not authorized by the federal Medicare
law.

[That means], “PacifiCare will have to go to state court to sue
Parra's family members under a theory of breach of contract, which could be
difficult, given that they were not a party to the Medicare Advantage contract.”

Thank goodness for small victories like this. This family deserves an actual happy ending, no?

January 04, 2013

When did oil misfortunes become so popular? Not that this topic hasn’t always been timeless and dramatic. (Like, it’s not every 1927 Upton Sinclair novel - the one called Oil! - so easily lends itself to being turned into an Oscar-winning film 80 years later. And it’s not every environmental catastrophe - the one created by oil - that’s devastating enough to lure Mos Def, Lenny Kravitz, the Preservation Hall Band, Trombone Shorty, and Tim Robbins simultaneously into the studio! See below.)

But a quick perusal of the news this week makes clear that misfortunes (to put it mildly) created by “oil” are all the rage, these days. Here’s our highlight reel:

On Thursday, the U.S. Justice Department “reached a $1.4 billion settlement ... with Transocean Ltd., the owner of the drilling rig that sank after an explosion killed 11 workers and spawned the massive 2010 oil spill in the Gulf of Mexico.” Notes the Associated Press, “BP PLC, which leased the rig from Transocean, already has agreed to pay a record $4.5 billion in penalties and plead guilty to manslaughter and other criminal charges related to the spill. The deal with BP doesn't resolve the federal government's civil claims against the London-based oil company.” And, “Last month, U.S. District Judge Carl Barbier in New Orleans gave final approval to a class-action settlement agreement between BP and a team of private plaintiffs' attorneys. BP estimates it will pay about $7.8 billion to resolve these claims, but the settlement isn't capped. Barbier also is set to preside over a trial designed to identify the causes of BP's deadly well blowout and assign percentages of fault to the companies involved. The first phase of the trial is scheduled to start Feb. 25.”

Also yesterday, “The House Sustainable Energy and Environment Coalition called on the Interior Department and the Coast Guard to jointly investigate the New Year's Eve grounding of the Shell drilling vessel Kulluk on a remote Gulf of Alaska island, and a previous incident connected to Arctic offshore drilling operations in 2012.” WritesAP,

"The recent grounding of Shell's Kulluk oil rig amplifies the risks of drilling in the Arctic," they said in a joint statement. "This is the latest in a series of alarming blunders, including the near-grounding of another of Shell's Arctic drilling rigs, the 47-year-old Noble Discoverer, in Dutch Harbor and the failure of its blowout containment dome, the Arctic Challenger, in lake-like conditions."

And speaking of the Associated Press, the newswire just got hold of a Department of Transportation report to Congress (set to be released next week), which finds that 16 pipeline spills “caused by flooding and riverbed erosion dumped 2.4 million gallons of crude oil and other hazardous liquids into U.S. waterways over the past two decades. … Of the 2.4 million gallons of oil, gasoline, propane and other hazardous liquids released, less than 300,000 gallons was recovered,” threatening drinking water supplies.

The massive August 6 Chevron refinery fire in Richmond California (San Francisco’s East Bay) may have been made worse by company firefighters who may have punctured a pipe – a “40-year-old pipe had already been weakened by the heavy sulfur content of the crude oil being pumped through it.” Meanwhile, reports the New York Times, many area residents are furious about,

Chevron’s choice of metal to replace a 5-foot-long, 8-inch carbon-steel pipe that became corroded and sprang a leak in August. The resulting fire sent plumes of black smoke into the air, spewing emissions of sulfur dioxide, as the authorities warned Richmond residents to stay indoors. Thousands went to emergency rooms with various health complaints. Chevron says it will compensate residents with valid claims for medical and property expenses, although it has not said how many of the 23,700 claims it has received will qualify.

And there are more problems in the Gulf of Mexico. Check out this incredible story:

An oil company admitted Thursday that coffee filters were used to doctor water samples and cover up the fact that it was dumping oil and grease into the Gulf of Mexico on its platform 175 miles south of New Orleans.

W&T Offshore pleaded guilty to a felony and a misdemeanor and agreed to pay $700,000 in fines and $300,000 for community service. W&T, which is based in Texas, announced last month that it would plead guilty to tampering with water samples from its Ewing Banks Block 910 platform and illegally discharging into the Gulf.
The guilty plea also included additional details about the company’s crimes.

Those details included the fact that W&T’s contractors used coffee filters to clean the water samples before submitting them to regulators.
Also, the company admitted that when they spilled some oil in November 2009, they not only failed to report it to the Coast Guard, but sprayed the oil into the Gulf and then hired a company that worked for three days to clean the platform to make it look like there never was a spill.

Inspectors from the Bureau of Safety and Environmental Enforcement still found oil staining on the platform deck and visible sheen in the water, all of which W&T failed to report as required.

May 21, 2012

I realize a lot was expected of me. I am fully aware that each of my seven predecessors were unceremoniously sacked for failing miserably in their one task – trying to destroy the award-winning documentary film, Hot Coffee.

Now without making any excuses, I do think we should ask ourselves how this happened. I realize that we’re terrible at making films that anyone wants to watch. But we’re supposed to own the narrative on “tort reform.” That’s why we produce expensive movie ads, make our own commercials and create our own newspapers. No one’s supposed to hear the other side of this, let alone millions of HBO/DVD viewers! Plus the film just won an award from that pinko Hollywood outfit, the Emmy’s. That won’t help.

Problem is, trying to damage the film now – over a year since its Sundance premiere and after much acclaim in the meantime - is probably insane. But when ATRA’s and ALEC’s Victor Schwartz came begging, still miffed that the film used sound bites of things he actually said, I thought well, we still have boatloads of cash. Let’s see how far we can get once again re-arguing (this time in webisodes) McDonald’s case – a case that the jury didn’t believe, a case that the judge and jury both rejected, and which led the judge, in refusing to grant a new trial in the case, to call McDonald's behavior “callous. We thought if we upped the star power by having Victor’s corporate law partner join in, and then promoted it all with some Google and Facebook ads … well, what’s the harm?

Unfortunately, some people have now brought to my attention a few “inconvenient” facts that … again – I beg you, please don’t make me #8.

First, you know how the whole last part of our little project (that would be webisode 6) accuses Hot Coffee of misleading viewers on how Jamie Leigh Jones got her case before a jury, saying that Sen. Al Franken’s efforts had nothing to do with it? What, did we have pre-schoolers doing the research on this? Because I just found a March 23, 2010 article from the Minneapolis Star Tribune, where KBR itself essentially confirms exactly what Hot Coffee says, specifically:

In a victory for Minnesota Democrat Al Franken, military contractor KBR has decided to drop a Supreme Court appeal in the case of a former company clerk who alleges she was raped by co-workers in Iraq. KBR's decision represents the first significant legal fallout from the "Franken amendment," which protects defense workers from being forced to accept arbitration after suffering sexual assault, battery or discrimination. The measure became the subject of a testy Senate battle that reverberated in legal circles and in popular culture as the subject of a Jon Stewart rant on cable TV's "The Daily Show."

KBR, which has sought to handle Jamie Leigh Jones' claim out of court, acknowledged Tuesday that its appeal might violate the amendment. …

Although the incident happened five years ago, when Jones was 20, the company could still be covered by the Franken amendment, which was intended to bar defense contracts to companies that enforce new or existing arbitration agreements in cases such as Jones'.

And then there’s the part where we say that overall damages caps (including compensation limits for economic losses) are so rare that focusing on Nebraska’s law (as applied in the Gourley’s birth injury case) was “misleading” and an example of using “slight of hand.” How was I supposed to know that just as our ads were hitting Facebook and Google, a jury verdict was coming down in a whole other state – Virginia – which also has this kind of cap? And now, just like in the Gourley’s case, this verdict is gonna be drastically cut, too! Economic damages! Hey, I’m not omniscient. I can’t control the timing on these things.

The Virginia case also involved a severe birth injury due to negligence by doctors, where the jury decided the child needed $9 million for a lifetime of care – but due to the cap, she’ll get a fraction of this. Now, I’m not complaining. Believe me, you won’t ever find us lobbying to repeal overall caps no matter how “extreme” we say they are. So here’s what happened in Virginia:

… Marissa [Simpson, Marsha's daughter] was born with dangerously low blood pressure, and with a loss of one-third to one-half of her normal blood amount. Additionally, her kidneys had been destroyed, and she suffered a brain injury from lack of oxygen. To date, Marissa has undergone two kidney transplants, and she has cerebral palsy. The attorney said the decision to induce was negligent, and once complications arose, doctors should have acted more quickly.

The family has spent more than $1.75 million to provide care for Marissa. Expert witnesses testified they could spend up to $8 million in the future.

[Attorney] Krasnow said he anticipates the defense will file a motion to ask Judge William Broadhurst to follow Virginia law, which caps the damages recoverable at $1.4 million each for Marsha and Marissa Simpson.

Let’s just hope this case doesn’t make it into the new edition of the Hot Coffee DVD extras. And by the way, when we say the 7th Amendment doesn’t mean juries get to decide damages in civil cases, just don’t tell the guy who came up with the constitutional arguments that we use for repeal of the health care law. He doesn’t agree with us.

I do want to emphasize that when we complain about using “subjective opinions to reach forgone conclusions,” pointing out that “flapjacks have two sides,” we are limiting our comments exclusively to Hot Coffee. I’ve heard some complaints that these words could actually apply to us, since we clearly only use “subjective opinions to reach forgone conclusions.” Please do not worry. By no means do we have any intent of ever engaging in flap jacking.

April 09, 2012

There’s a front page New York Timesarticle today about 20th Century Fox's sudden marketing nightmare for its upcoming summer popcorn comedy, “Neighborhood Watch.” You can imagine how the country might not see the “funny” in a film like that right now, even though it’s about “four suburban watch members who save their neighborhood, and the world, from an invasion of space aliens.” Fox is trying its darndest to push the “space alien” angle (as opposed to the “vigilante” angle), but I have to say this summer might still be “too soon.” As the timing of George Zimmerman’s arrest gets pushed later and later into the infinite future, the Trayvon Martin murder story is not going away. And here's another thing that may keep "Neighborhood Watch" problems in the news.

There is an APstory today out of Sanford, FL about the possibility of a civil lawsuit against Zimmerman’s neighborhood homeowners association, “The Retreat at Twin Lakes.” According to lawyers familiar with the situation,

Exhibit A would be a newsletter sent by the association to residents in February, the same month as the shooting. It said Zimmerman was the go-to person for residents who had been the victims of a crime.”

Under the heading “Neighborhood Watch,” the newsletter’s message recommended that residents first call police and then “please contact our Captain, George Zimmerman ... so he can be aware and help address the issue with other residents.”

“It’s almost like if you give your son the keys to a brand new Corvette when he turns 16” and he gets in an accident, said Roberto Blanch, a South Florida attorney who specializes in homeowners associations. “You may be seen as enabling the occurrence or the loss.”…

“So, if you’re going to send out a newsletter saying, ‘Hey, he is the captain. Whatever he says goes,’ You have now basically rented a free police officer for your neighborhood,” [attorney Justin] Clark said. “He certainly took on that role with the homeowners association, and it seems to me that they recognized that.”

It's not just the film's name that has that studio worried. They have also pulled the trailer out of movie theaters (see it below) and even pulled back the movie poster (see it above.) What do you think. Too soon? Or just more bad Karma for Rupert Murdoch.

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